Prison Broadly Fails

Not the words of the Howard League or Prison Reform Trust but ex Met Commissioner Bernard Hogan Howe a self-styled “hard-nosed enforcer” who thinks punishment really important. He was speaking in last week’s House of Lords debate on ending automatic halfway release for serious offenders. Despite his widely shared view – in the Lords at least- that there are already far too many prisoners, the Conservative manifesto pledge has been approved by both chambers. And the number of prisoners is likely to get a lot higher over the next ten years.

2,000 new prison places will be needed by 2030 as a result of the Statutory Instrument (SI), approved yesterday in the Commons which will see anyone getting a determinate sentence of seven years or more for a serious sexual or violent offence (carrying a maximum of sentence of life) spending two thirds of their term locked up.

But many more cells will be needed much more quickly if legislation promised for later in the year scraps release at halfway for a wider range of prison sentences. Justice Minister Chris Philp told MP’s the SI is "simply the first step in part of a wider process to make sure that we not only protect the public but respect the rights and concerns of victims”. 

Philp had barely got to his feet before one of his colleagues demanded prisoners serve the whole of any sentence imposed. Another wanted even longer than that if they misbehaved inside.  

More telling were the powerful contributions made by MPs who expressed the anger and frustration of constituents- and in one case their own family- who affected by serious crimes felt early release meant justice had not been done; not enough punishment , not enough deterrence, not enough protection for victims and the public- not enough time, some said, for rehabilitation.

On the positive side, Philp promised proposals to do more to treat the causes of offending behaviour, particularly drug and alcohol addiction and mental health problems, which are often the cause of high-volume repeat offending. Philp told MPs that “short custodial sentences do not deal effectively with that cohort of offenders”. So David Gauke’s plans to replace them with community orders may still be alive and well in the MoJ. But, while these welcome measures, depending how they are implemented, could reduce the flow of people into prison, they won’t come close to offsetting the impact of larger proportions of longer sentences being served there.

Add in the effects of the 20,000 new police officers- I’ve heard an estimate of a 12-15% growth in prison numbers resulting from better clear up rates- and there’s a perfect storm for HMPPS and the MoJ. A former Chief Justice wondered aloud in the Lords whether even to meet the costs of the initial measures in the SI other parts of the MoJ particularly the courts and legal aid would continue to be denuded to prop up the Prison and Probation Service.

There will at least be a White Paper which will set out the Government’s approach which at best looks like what criminologists used to call bifurcation – more prison at the top end, less at the bottom.

For those of us who want to see less use of prison across the board, there is an urgent need to develop some fresh thinking. Decrying a populist approach and lack of evidence – as Labour and Lib Dem Peers did last week -will not get far.

It is not true – as one MP put it, that there has been “a creeping, pervasive shift away from the victim towards the perpetrator—that the victim is no longer put first, but the perpetrator is.” But penal reform must engage better with the concerns and anxieties of victims- particularly victims of violent and sexual harm- and develop and promote measures which can address them so much better than incarceration.  

The government told Parliament that the White Paper will give an “opportunity to go further and broader” than the measures they were discussing. They are right. If prison broadly fails, we need to legislate for and invest in what broadly succeeds.  

Children in Custody- Time for Separation from the Prison Service

The Chief Inspector of Prisons has said he does not believe that children under 18 should be held in prison.  “The Prison Service is essentially an organisation for adults, neither structured nor equipped to deal with children. It is the plight of children that alarms us most, not least because of the conditions in which they are held in Prison Service establishments”. This was David Ramsbotham almost a quarter a century ago -but it should have been what his successor Peter Clarke said today.

Clarke’s shocking report on the separation in young offender institutions (YOIs) rightly calls for an entirely new approach to what is effectively solitary confinement, in which children spend long periods of time in their cell without any meaningful human interaction. But disappointingly, he stops short of demanding more thoroughgoing change to a system in which the atrocious treatment he describes is just one symptom.  After four years of diagnosing the ills of youth (and adult) custody, a more radical prescription from Clarke, who steps down shortly, would have been timely for two reasons.

First, the May government accepted the vision contained in Charlie Taylor’s review   that YOIs and Secure Training Centres should be replaced in the longer term by smaller secure units situated in the regions that they serve. But the Johnson administration has yet to confirm the vision is still in place - the manifesto talked only about “trialling secure schools.” A clear signal from the Chief Inspector that the current arrangements need to be replaced would usefully reinforce the case for bold, radical  and comprehensive action. Whether we need new secure schools is open to question, however. Think Tank Crest Advisory has recently argued for an explicit commitment to the closure of all Young Offender Institutions by 2025 and an expansion of secure children’s homes instead.  

Second, among the speculation about possible changes in the machinery of Johnson’s government, a case has been building -for example in last week’s Policy Exchange Report – that Her Majesty’s Prisons and Probation Service (HMPPS)  be  reabsorbed into the Home Office, bringing prisons under the direct control of the Home Secretary, whose department deals with threat, harm and risk to public safety. There are many arguments against doing this, one of which is that it would make prisons even less suitable for dealing with children.  A better move would be to shift responsibility for youth justice to the Education Department alongside children’s social care and secure accommodation.

There’s no guarantee of course that the government would accept recommendations for these kinds of structural changes had Clarke made them. New Labour baulked at Ramsbotham’s proposal, leaving the new Youth Justice Board to drive up standards in YOI’s.  Short-lived improvements in the early 2000’s could not overcome fundamental structural faults. The Youth Custody Service too has struggled since 2017 to make YOI’s sufficiently child focused. Despite some good staff, the buildings, rules, procedures and culture are all too often simply wrong.

So too is the level of investment. The government in their response to the Taylor review promised additional specialist support units with a higher staff to young person ratio to provide enhanced psychological support and guidance to children and young people with the most complex problems.  The Inspectorate report’s finding that many children in YOIs are subject to unacceptably impoverished regimes tells a different and depressing story. 

Now’s the time to start writing a new chapter .

Sentencing on the Box- More Confidence or More Prisoners ?

What will be the impact of televising judges’ sentencing remarks in the Crown Court? Justice Secretary Robert Buckland and Lord Chief Justice Lord Burnett hope that regular broadcasting will improve public understanding of the justice system. The BBC, ITN and Sky, who have long campaigned for greater transparency in the courts say much the same. But there must be serious questions about whether filming and broadcast from courts will in fact lead to an increased level of public confidence in the sentencing decisions handed down by judges. Around 70 per cent of the public think sentencing in general is too lenient and while this perception is often reduced when people are presented with individual cases, the latest research for the Sentencing Council found that “for some offences, there may be a public appetite for higher sentences than the guidelines suggest or legislation allows”.

Critics of the plan include barrister Clive Stafford Smith, who  thinks televising sentencing decisions is a very bad idea indeed which will impose “political pressure on judges to be harsh on people populists hate and label ‘criminals’”. I’m concerned that there’ll be a spike in complaints about unduly lenient sentences and a chilling effect on creative sentencing which prioritises rehabilitation over punishment. All that could mean longer sentences and a much-increased prison population.  Or will the benefits outweigh the risks?   

The Supreme Court has allowed broadcasting of its proceedings since it was established in 2009 and filming in the Court of Appeal has been possible since 2013 although I can’t remember seeing much footage of the latter. The government reviewed the introduction of Appeal Court broadcasting after a year of implementation, concluding that after some initial problems, it had effectively been embedded into court practice. The review also raised the issue of whether “the broadcast material is used in a manner conducive to achieving the policy aims of improving public access and understanding of court judgements”. This theme was one to be re-considered as part of a proposed test in the Crown Court which was undertaken three years later.

In 2016, the government launched that test of the practical and technical challenges of filming in the Crown Court. In Parliament, “support was expressed for an extension to court broadcasting if it led to increased public understanding of the court system and greater transparency of court judgements”. But how do we know if it has achieved these worthy aims?

An Impact Assessment prepared in 2016 before Parliament approved the test filming in the Crown Court said that “following the end of the test period, a further Impact Assessment will be prepared to support the final decision as to whether to allow Court Broadcasting of sentencing remarks from the Crown Court”. But the Statutory Instrument (SI) laid before Parliament last week which would make that final decision has no Impact Assessment attached to it.  One has not been prepared “as no significant impact on the private, voluntary or public sector is foreseen”.

Before approving the SI, MPs and Peers must ask some serious questions about what is known about experience so far- and indeed in other jurisdictions where filming is allowed.  The government have acknowledged that their policy aims would not be met if the media selected cases for public interest value or excitement, rather than with the aim of promoting understanding. Risks have also been raised by government that “televising our courts may open the judicial process to sensationalism and trivialise serious processes to a level of media entertainment”.  How do they propose to prevent this happening?

The government claims that televising hearings is part of their wider court reform and digitalisation programme, “using technology and modern ways of working to increase access to justice for people up and down the country”.  But, to coin a phrase, they would, wouldn’t they?